Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019)

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1; Director of Public Prosecutions v Harington [2017] TASCCA 4; Director of Public Prosecutions v Brown [2019] TASCCA 11; Price v Tasmania [2016] TASCCA 22; R v Kilic [2016] HCA 48, 259 CLR 256; R v Dunn [2004] NSWCCA 41, 144 A Crim R 180; Gregson v Tasmania [2018] TASCCA 14; Director of Public Prosecutions v Swan [2016] TASCCA 9, referred to.

"8 As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: ; at 539.

9 It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476:

1. In Director of Public Prosecutions v Harington [2017] TASCCA 4, Pearce J summarised the considerations where the appeal is brought by the State on the ground of manifest inadequacy. His Honour said at [95]-[96]:

"95 This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116]. In Everett v The Queen, McHugh J said at 306:

96 The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appealable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

1. I accept the appellant's submissions. They are undoubtedly correct.
2. As the learned sentencing judge commented, there was no justification for leniency in this case. While his Honour noted that he took into account the respondent's long standing mental health issues, he was well aware that the operation of the symptoms of any of those illnesses at the time of the relevant offending was put no higher than a possibility.
3. During the sentencing hearing the prosecutor specifically noted that a reduction in an otherwise appropriate sentence under the sixth of the Verdins principles was accepted on the basis that the hardship of imprisonment experienced would be greater than ordinarily might be the case with a person without the respondent's mental health issues. However, any reduction of sentence on any other of the Verdins limbs was not accepted as there was no evidence before the Court to "properly link the offending to the (psychiatric) condition". It follows that I do not accept the respondent's submission that his "offending" must be viewed against the backdrop of his "psychiatric issues".
4. In my view the words of Blow CJ and Pearce J in Director of Public Prosecutions v Brown [2019] TASCCA 11 at [2] are apposite to the present case:

"... this is a serious case, and the intervention of this Court is required so as to 'maintain adequate standards of punishment for crime ... and ... to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience': DPP v Dalgliesh (a pseudonym) [2017] HCA 41, 262 CLR 428 per Kiefel CJ, Bell and Keane JJ at [63] citing Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 234; R v Osenkowski (1982) 30 SASR 212 at 213; Wong v The Queen [2001] HCA 64, 207 CLR 584 at 591-592 [8]."

1. There is no discernible error in the approach the learned sentencing judge took to the formulation of the sentence. However, in the result inadequacy is plainly apparent to my mind.
2. The assaults were committed in the context of domestic violence, which is an aggravating factor: see Price v Tasmania [2016] TASCCA 22 at [39], per Estcourt J. They were cowardly and vicious. The notion of causing the complainant to wet herself, even minimally, by confining her to the bed is abhorrent. While noting that the complainant's two children were not directly threatened or injured in any way, the menaces used in the demanding of the money were horrific, involving as they did, threats to the complainant of death to both her and her children.
3. As was acknowledged by the High Court in R v Kilic [2016] HCA 48, 259 CLR 256 at [21], sentencing practices for offences involving domestic violence may "depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations". This has occurred in recent years and this is now well understood in the community.
4. Each of the identified incidents involved vicious and cowardly attacks by the respondent on a woman. Lest it be thought that grabbing the complainant by the throat and applying pressure is somehow less insidious than punching or kicking, it has been noted in an article by Heather Douglas and Robin Fitzgerald entitled "Strangulation, Domestic Violence and the Legal Response", published in the [2014] SydLawRw 11; (2014) 36 (2) Sydney Law Review 231, that strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome.
5. Choking can cause loss of consciousness and can cause death quickly. It has been suggested that death can occur within seven to fourteen seconds. Additionally, underlying internal injuries caused by the pressure applied to the throat can cause swelling which may develop gradually over days and airways obstruction causing death may be delayed.

1. To that I would add retribution and vindication of the victim.
2. In Gregson v Tasmania [2018] TASCCA 14, a case of assault by a man, with relevant prior convictions, upon his partner by punching her multiple times to the head, Martin AJ said at [37]:

"37 The appellant is not to be punished again for his prior criminal conduct, but he is not entitled to any leniency. He has a history of violence towards women and, as I have said, the community is greatly disturbed by the prevalence of this type of conduct. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners: Director of Public Prosecutions v Karklins [2018] TASCCA 6 per Geason J, at [54]-[60]. Women who become victims in these circumstances, and other potential victims throughout the community, are entitled to such protection as the law is able to provide through the imposition of sentences that will act as both a personal and a general deterrent."

(2000) 202 CLR 321

(1936) 55 CLR 499

(1992) 1 Tas R 234

(1999) 195 CLR 665

(1997) 189 CLR 295

(2010) 242 CLR 520

(1988) 164 CLR 465

(1994) 181 CLR 295

(1977) 137 CLR 293

(1989) 168 CLR 227

(1982) 30 SASR 212